InsightsInsight - Wills and Probate - POSTED: April 6 2016
Will and probate disputes – Frequently asked questions
The specialist lawyers in our Contentious Probate team answer some of the common questions that clients ask about this complicated area of law.
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What makes a will invalid?
- Lack of knowledge and approval – If a will has been correctly executed, it will generally be presumed that the maker of the will had knowledge of and approved of the contents of the will. An example of when this awareness may not be present could be if someone benefiting from the will (a beneficiary) had a particular input into the putting together of the will, or if the will is extremely complicated.
- Undue Influence – The will may be set aside entirely or in part if the maker of the will was coerced or forced into making the will. Evidence of actual coercion is required and it is not enough that the maker of the will was put under moral pressure or appeals to ties of affection were made to them.
- Lack of Capacity – The maker of a will must have been of sound mind and had the capacity to execute a valid will. Having a mental illness does not per se mean someone will lack this capacity. Some form of medical evidence is likely to be required to challenge a will on this ground.
- Fraud – If the maker of the will was tricked into executing it or if someone signed the will instead of the intended maker, the will can be declared invalid. Fraud can also arise if the original will was deliberately destroyed or if there were no witnesses present at the time the will was signed by the maker.
How do I stop probate from going ahead?
It is possible to enter a caveat which stops probate going ahead. This may be done where, for example, there is uncertainty over which of more than one will is the last valid will or whether, for example, the deceased really died intestate. You must be 18 or over to submit a caveat and it will last for six months.
Can a will be varied after someone has died?
A will can be varied if everyone who benefits directly from the will agrees to the change. In order for this agreement to be legally enforceable, a deed of variation should be drawn up. A will may be varied for a number of reasons e.g. to reassign the way the estate is divided up and/or to make the division more tax efficient. A will may also be varied if a claim is successful under the Inheritance (Provision for Family and Dependants) Act 1975.
Will I need to go to court to contest a will?
We will firstly aim to resolve matters through negotiation or alternative methods of dispute resolution such as mediation. In the situation where this is not possible and the matter proceeds to trial, you will then have to attend court and give evidence. However, most cases are settled without the need to go to court.
What can I do if I have been left out of the will or are unhappy about my share?
The Inheritance (Provision for Family and Dependants) Act 1975 allows certain people to bring a claim for financial provision where they do not believe their current financial provision, if any, is adequate.
The following people can apply under the act:
- The spouse or civil partner of the deceased
- A former spouse of civil partner of the deceased who has not formed a subsequent marriage or civil partnership
- Any person who, during the whole of the period of two years ending immediately before the date when the deceased died, was living in the same household as the deceased and as the husband or wife of the deceased or civil partner
- A child of the deceased
- Any person, not being a child of the deceased, who, in the case of any marriage or civil partnership to which the deceased was at any time a party, was treated by the deceased as a child of the family in relation to that marriage or civil partnership
- Any person who immediately before the death of the deceased was being maintained, either wholly or partly, by the deceased
Do I have to be related to the deceased to bring a financial claim?
No, you do not have to be related to the deceased to bring a claim. Please see the list above for those who are entitled to bring a financial claim.
Can I do anything if the wording of a will is not clear?
The usual route in this case would be for the executors (those responsible for administering the will) to seek direction from the court as to the meaning. The court can look at whether the will gives effect to the deceased’s intentions and may also rectify any clerical errors made in the will.
What can I do if I think a relative has left a will but someone is withholding it from me?
In this case, you should get in touch with your local Probate Registry and see if they can tell you if there is a will made by the deceased. If you believe that there is a will and someone is withholding it, an application can be made to the court to make that person produce the will or attend court and provide further information.
What can I do if the executor refuses to act or is very slow?
It is possible to apply for an executor to be removed and a new executor appointed. This will be done by court order. The court will only remove an executor where the removal is in the interest of the proper administration of the estate and will promote the welfare of the beneficiaries. Alternatively, a citation, which is a direction issued by the court, can require an executor to either accept or refuse a grant of probate.
If you have a question that is not covered here or would like advice about a particular matter, please contact Deborah Cain.
This content is correct at time of publication
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